Open
Regionalism and Deeper Integration: The Implementation of ASEAN Investment
Area (AIA) and ASEAN Free Trade Area (AFTA)
Dr.
Lawan Thanadsillapakul
Part
19
MR
is also now encouraged by the WTO agreements i.e. the Technical Barriers
to Trade (TBT) agreement and the Sanitary and Phytosanitary Measures (SPS).
The TBT refers to mutual recognition both for testing procedures and for
substantive product regulations. MFN and NT are both required to be granted
to other WTO Members in regard to access to domestic conformity assessment
procedures. For instance, if a member state has eliminated the requirements
of domestic conformity assessment, this would form the basis for a level
of internal treatment that must then be accorded to imported goods on
the basis of NT. However, the waiving of internal assessment procedures
in favour of another's procedure suggests that whether this can be done
depends upon one party's receipt of sufficient assurances as to the quality
of the other party's procedures. Thus, on this ground, it appears that
mutual recognition may be based on member-by-member agreements or autonomous
recognition, and need not be extended automatically to all other members
under the MFN clause. WTO agreements ensure only that equal opportunity
is granted to all member states to enter into such agreements or arrangements,
so as to encourage member states to adopt the mutual recognition. This
may lead to standardised national procedural requirements or to the development
of further common international standards or minimum standards, which
is an alternative to mutual recognition. WTO member countries are pressed
to use applicable International Standards where there are such standards
available(128) .
Under GATS, recognition of educational or other qualifications may be
achieved through harmonisation, or may be accorded autonomously or based
on agreements or arrangements enter into by Member States, bilaterally,
regionally, or plulilaterally. Art. VII encompasses recognition for both
conformity-assessment and equivalency aspects (further discussed below).
WTO agreements also adopted the origin-designated recognition agreement
and recognition of equivalent foreign product regulations, which means
Member States may recognise not only their respective capacities to provide
for assessment, but further acknowledge the other country's substantive
internal requirements to be sufficiently equivalent to permit access without
application of the importing country's domestic regulation(129) . Mathis states that the MR agreement negotiated between the EU and the
US also accepted this principle.
"In
such a case, an acceptance of the other party's standard has been made,
the domestic product regulation has been waived as to those goods, and
the non-tariff barriers issue presented by differing standards between
countries has been effectively bypassed" (Mathis, 1998: 20).
This recent development clearly shows the positive trend in the adoption
of mutual recognition in facilitating free flows of trade and investment
at both international and regional level. It also implies that since mutual
recognition is becoming accepted, a convergence of internal requirements
would develop since regulatory competition would encourage the adoption
of prudential and high standards.
Within the EU, mutual recognition has gone further than the WTO agreements,
since it covers both equivalent-recognition aspects together with conformity-assessment
aspects, a prospect that still does not appear to be entertained by the
TBT agreement. John Clarke mentioned the experiences of the EU that:
"In
order to permit a genuinely free circulation of goods throughout the
European Community, it was necessary for the individual Member States
of the Community to reciprocally recognise not only the equivalence
of the product standards of other Member States, but also the validity
of the tests and certificates of compliance issued by the bodies in
those Member States"(130) .
This advancement may need a certain level of regulatory development such
as in the EU, especially the crucial role of the ECJ in developing the
mutual recognition approach, that took 20 years to establish the principle
and another 20 years to implement. Now I turn to discuss the MR in the
case of ASEAN, as adopted in AFAS (although the level of development is
still far behind the EU's).
In
order to facilitate liberalisation of services intra-ASEAN, Art. V of
AFAS provided that:
"Each
Member State may recognise the education or experience obtained, requirements
met, or licenses or certifications granted in another Member State,
for the purpose of licensing or certification of services suppliers.
Such recognition may be based upon an agreement or arrangement with
the Member State concerned or may be accorded autonomously".
Part
20
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(128)
Arts. 2 and 4 and also Arts. 5 and 6 of the TBT agreement. Legal text
of TBT can be downloaded from WTO website http://www.wto.org/wto/legal/finalact.htm.
(129)
Art. 2.7 TBT provided that "Member shall give consideration to accepting
as equivalent technical regulations of other Members, even if these regulations
differ from their own, provided they are satisfied that these regulations
adequately fulfil the objectives of their own regulations".
(130)
Clarke, John (1996) "Mutual Recognition Agreements", in International
Trade Law and Regulations, Vol. 2, p. 35. Cited in Mathis, op., Cit.,
p. 21. |